By Yosef Yacob, AB, JD, LLM, PHD
February 20, 2014
Yosef Yacob (PhD)
Generally, formal agreements and legal regimes provide a legal point of departure to contribute the general principles and rules that govern co-basin states’ legal relations in the utilization of international rivers.
This chapter begins the examination of reciprocal rights and obligations of the sub-basin’s riparians by reviewing the treaties, which form the legal regime of the Blue Nile Sub-basin. The chapter describes the evolution of the legal regime by reviewing the colonial as well as the postcolonial treaties and other significant negotiations concerning the utilization of the basin’s waters.
1. Colonial Treaties
The early treaties regarding the Nile basin were largely the products of British colonial intervention in the region. The British were anxious to preserve their position of control over the Suez Canal. A major part of keeping Egypt satisfied was ensuring the permanent availability of Nile waters for Egyptian uses. While the British had many colonial interests in the Nile basin, they usually chose treaty arrangements that favored Egyptian claims to the Nile, for the above mentioned reason.
The British at this time introduced the notion that Egypt’s rights to the Nile were so long established that they should take precedence over all other schemes for use of the Nile. The early colonial period treaties regarding the Nile basin show the British single mindedness on this issue.
These older agreements emphasized certain tenets and attitudes regarding rights to the Nile that have persisted through the development of the current legal and institutional system operating in the Nile basin. They have given weight to Egypt’s claims to be the state with the greatest historic legal recognition of rights to the Nile waters.
This early colonial period was also the first in which Egypt was to admit that other states could potentially affect its claims to the Nile. Without the water that the Blue Nile brought down from the Ethiopian Highlands and that the White Nile carried away from the central African lakes, Egypt would be a desolate land.
1.1 Italy United Kingdom Protocol – 1891
Until the explorations of Baker, Speke, and Stanley in the latter half of the nineteenth century, no one knew where the source of the Nile was located, but all believed that interference with its water was possible. Until Britain acquired interests in Egypt, however, speculation on such a diversion was left largely to scholars and travelers. As long as no European power moved into the Sudan or established a position astride the Nile, the British believed that Egypt would have water and British domination of Egypt would remain secure.
In 1889, British complacency was shaken. The first threat to the Nile by a European power loomed in the heights of the Ethiopian plateau. The Italians had long wished to establish a protectorate in Ethiopia, and after 1885, the British had even encouraged Italian moves into the highlands. At first the British calculated that Italian penetration would not only keep the Ethiopians out of the Sudan but would also act as a counterweight to the French, who were strengthening their position at Djibouti.
In 1889, the Italians seized the first real opportunity to enlarge their prospective sphere of influence. On March 9, the forces of the Mahdist of Sudan stopped the Ethiopian expansion into Sudan at the Battle of A1-Qallabat, killing King Yohannes IV. In order to consolidate his internal position among the traditionally warring feudal factions, the new Emperor, Menelik, welcomed Italian offer of support and signed the Treaty of Ucciali in May.
The Italians translated the treaty into action and laid claim to Kassala situated below the escarpment in the Nile Basin, which commanded the Atbara tributary of the Nile. With this town as a base, the Italians could proceed towards Khartoum at the confluence of the White and the Blue Nile.
The British were concerned that the Italians may attempt “to tap the upper Nile” and proceed to occupy Sudan.” In August 1889, the British announced against letting foreign Powers into the Nile Valley and authorized “… such measures as may be necessary for the purpose of protecting [the] Nile Valley against the dominion of any outside Power.” Accordingly, the British warned Italy to stay away from the Nile. In March 1891, Italy officially consented to remain out of the Nile Valley in return for British recognition of an Italian sphere of influence in the Ethiopian Highlands.
The Anglo Italian Treaty was signed in Rome, Italy on April 15, 1891. The protocol protected Egyptian interests in waters of the Atbara River, a tributary of the Nile. The British concluded this treaty before the major source of the Nile was identified as the Blue Nile, which originates in the highlands of Ethiopia.
Article III stipulated:
“The Government of Italy undertakes not to construct on the Atbara any irrigation or other works which might sensibly modify its flow into the Nile.” This was followed by an exchange of notes between Italy and Britain signed in Rome on November 22, 1901 marking the frontier between the Anglo-Egyptian Sudan and Eritrea.Treaty Between Anglo Egyptian Sudan, Ethiopia and Eritrea – 1902
The Treaty of Ucciali for Everlasting Peace and Friendship between Ethiopia and Italy was concluded on 2 May 1889. By this treaty, Italy recognized Menelik as Emperor of Ethiopia in exchange for a number of strategic and commercial privileges.
The most important clause of the treaty was article 17, in which the Emperor declared that, if needed, he would make use of Italy’s diplomatic services. That at least was what the Amharic text stated, however the Italian text, read that he had to make use of these services. Menelik let it be known that he did not accept the Italian text.
In September 1895, Menelik declared war on Italy. The Italians went on the attack on 1 March 1896. The result would enter the history books as the Battle of Adwa. The Ethiopian army scored an overwhelming victory. Five days later Italy sued for peace and negotiations led to the Treaty of Addis Ababa, signed on 26 October 1896.
The Treaty of Ucciali was revoked, and Italy recognized the sovereignty and independence of Ethiopia. The Ethiopian victory demonstrated expansion into Ethiopia was not going to be an easy option for Europeans. The clear message of the Battle of Adwa was that Ethiopia would not become a victim of European Imperialism but rather a worthy partner with similar expansionist aspirations into the Sudan.
Meanwhile the news of the Battle of Adwa had other consequences as well. The immediate consequence was not only the elimination of the Italian threat to Ethiopia but Italy’s appeal to Britain for military assistance at Dunqula to relieve the beleaguered Italian garrison at Kassala. The Italian appeal for support provided Britain with the perfect excuse for seizing a large slice of the Nile Valley in view of the powerful Ethiopian Emperor’s expansionist aspirations.
On March 13, 1896, the British, under Kitchener advance on the pretext of helping the Italians but in reality to acquire a permanent gain on the middle Nile. While Britain was formulating plans to move on the Nile from the north and the east, the French were not idle. The French had been holding back a colonial expeditionary plan for the occupation of Fashoda at the Upper Nile. On June 5, Captain Marchand left for Africa. Marchand was to be assisted by two French expeditions moving toward the Nile through Ethiopia.
To gain support for the expedition, the French offered Menelik all the territory between the Ethiopian escarpment and the White Nile. Menelik agreed to support the French expedition. He received weapons and French recognition of his claims to the eastern half of the Sudan (east bank of the Nile from the Nilotic Plains from Khartoum to Lake Albert). In June 1898, a combined French Ethiopian force reached the junction of the Sobat and the White Nile and planted a French flag on an island in the Nile and an Ethiopian flag on the east bank of the Nile. The expedition then turned back to Ethiopia. Three weeks after the combined expeditionary force departed, Marchand arrived at Fashoda.
On September 25 the news of the arrival of Kitchener’s force in Fashoda and his meeting with Marchand reached Europe. Marchand was told to withdraw or Britain would declare war on France. France capitulated and on November 3 ordered the withdrawal of the Marchand expedition. The Fashoda crisis was over. Once having obtained Marchand’s evacuation, an Anglo-French treaty was signed in March 1899 delimiting the British and French spheres in the Sudan to exclude France from the Nile basin.
During the same period, in March of 1899, Lieutenant-Colonel Harrington the new British Consul in Abyssinia (name of the Predecessor State of present-day Ethiopia) arrived with instructions to discuss the Sudan frontiers with Emperor Menelik restricting the Ethiopians to their highlands. Menelik was unwilling to “open the question” and to abandon his claim to the Sudan, until April of 1899, a month following the Anglo-French Treaty.
The British had proven military superiority and strength in the Sudan, and in view of the French capitulation at Fashoda and the subsequent Anglo-French Treaty, Menelik decided to settle with the British. In May of 1899, a preliminary agreement was arrived at subject to settlement of details concerning the frontiers. Menelik agreed to give facilities to two British survey parties to explore the country south of the Blue Nile and near Lake Rudolph.
Following completion of the survey, the British realized for the first time the significance of Lake Tsana and the Blue Nile River to Egypt and Sudan and accordingly instructed Harrington in a confidential dispatch that in the frontier agreement he should:
…also endeavor to arrange with the Emperor Menelik that there is to be no interference with the waters of the of the Blue Nile and Lake Tsana, except in agreement with Her Majesty’s Government and the Government of the Sudan; that navigation on the Blue Nile and the Sobat River, with their tributaries, where navigable, is to be free;… these arrangements are to be included in the Agreement for the delimitation of the frontier, or form a separate agreement.
The Egyptian Government sanctioned a grant of £10,000 a year to the Emperor in return for the Emperor’s undertaking that there would be no interference with the waters of Lake Tsana and the Blue Nile tributaries. Harrington was authorized to promise payment of this subsidy from 1 January 1904, provided the Emperor signed a satisfactory declaration.
The payment was intended as an incentive to gain the approval of Menelik who needed resources and weapons to achieve his expansionist aspirations to the south and west of Abyssinia. The terms of the treaty were finally agreed upon in April of 1901.
Therefore, in March 1902, Harrington exchanged notes with Menelik by which the latter gave an assurance that he would not “arrest” the waters of the Blue Nile and Lake Tsana except in consultation with His Majesty’s Government and the Government of the Sudan.
In reporting this Exchange of notes, Harrington expressed confidence that Britain had no desire to demand from the Emperor that he should deprive himself of a valuable asset without equivalent compensation. At the time the notes were negotiated, Harrington wrote:
I am absolutely convinced that if I separate the other questions such as Tsana etc., and sign a frontier treaty simply, I may whistle till I am blue in the face before I get any further agreements signed.Following further negotiations, a treaty was finally signed on May 15, 1902 settling the frontiers between the Sudan, Abyssinia, and Eritrea. Menelik abandoned all claims to any territory bordering on the Nile below the Ethiopian escarpments. The Nile Val¬ley appeared at last to be securely British. The British had succeeded in excluding the Italians, the French, and now the Ethiopians from the Upper Nile.
Although, the primary purpose and object of the 1902 agreement was to delineate the frontiers of Ethiopia and the Sudan, the third article of the agreement provided that:
His Majesty the Emperor Menelik II, King of Kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed, any works across the Blue Nile, Lake Tsana or the Sobat [river], which would arrest the flow of their waters into the Nile except in agreement with His Britannic Majesty’s Government and the Government of the Sudan.To this ancillary provision the additional “…. or allow to be constructed” was included because for some years previous to 1902 proposals had been made by a Mr. Aitken, a British investor, for utilizing Lake Tsana as a reservoir to store water for irrigation requirements of British cotton interests in the Sudan. The British were strongly opposed to a proposal, which involved the transfer to a private company of rights over the lake.
To carry out suggestions for giving Menelik “equivalent compensation,” in January 1904 Lord Cromer, the British Commissioner in Egypt, sent to the Foreign Office the text of an arrangement which he had authorized Harrington to make with Menelik. The text was as follows:
In consideration of Menelik having agreed by article 3 of the treaty between Great Britain and Ethiopia of the 15th May, 1902, not to construct …any work across the Blue Nile, Lake Tsana or the Sobat which would arrest the flow of their waters into the Nile, except in agreement with His Britannic Majesty’s Government and the Government of the Sudan…the Anglo-Sudanese Government undertake to pay to the Emperor or his successors the sum of £10,000 sterling annually so long as the friendly relations between the two Governments continue.British Foreign Office archives do not show the course of subsequent negotiations with Menelik between 1902 and 1907, nor could this writer find the exchange of notes containing the terms of the stipulation. According to the British, although the arrangement was in principle accepted by Menelik, it was never formally signed, as Menelik “made difficulties” about the form of the British note. The promised annual subsidy was, therefore, never paid.
The British had accomplished one further step towards their goal of securing the Nile Valley by protecting the headwaters of the Blue Nile River. The British soon embarked on a strategy to wrest control of the Blue Nile, from the unsuspecting Ethiopians, through a series of colonial power agreements during the “scramble for Africa” in the early years of the twentieth 20th century.
This was the only Nile treaty to which Ethiopia was a party.
The next installment, PART 3 will discuss the Agreement Between Great Britain, France, and Italy Respecting Abyssinia – 19061
1 Agreement and Declaration Between Great Britain, France and Italy Respecting Abyssinia, (1907) B.T.S. No. 1; Cmd, 3298.